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- Factual basis
In defamation cases, it is essential to make a distinction between:
Statements of facts
If a disputed statement or publication claims facts, the author or publisher has to prove before the court that these facts are indeed true.
If a disputed statement or publication is an opinion, the author or publisher has to show before the court that there was sufficient factual basis to substantiate it.
Facts are information that can be objectively verified as true or false. Therefore, if you state facts that are challenged by another person as false, you will have to prove that these facts are true.
example If you publicly declare that someone has given a bribe to the city mayor to win a public tender for the former’s company, you will have to prove that this statement is true.
An opinion or value judgement is your subjective opinion about a certain event or person. This opinion is created on the basis of information available to you. A value judgement is subjective and therefore no one can objectively verify or prove whether it is true or false.
However, this does not mean that critical value judgments about a person should not have any link to reality. Critical opinions, especially if they are expressed in offensive language, can be excessive if they have an insufficient factual basis.
example If you publicly criticized someone and called him/her “a liar”, it is impossible to require you to prove that your opinion is true. However, you should be able to mention at least some facts to support your opinion that this person has lied.
The degree of factual basis depends on how serious the allegations are and should be assessed in every case. The more serious and precise the allegation, the more accurate and reliable the factual basis must be.
example If you publicly state that someone is a thief, you should have a solid factual basis to substantiate your opinion.
To distinguish facts from opinions, it is important to take into account not only the literal meaning of the words, but also:
- the context of the statements
- the way the audience perceived them
- the meaning attached to them by the author
In many cases it is difficult to assess whether a certain statement is an opinion or a statement of fact. In cases where a value judgment is close to a statement of fact, the author of statements or publisher may not be required to prove the truth of his/her opinion, but to provide facts which are sufficient to substantiate the opinion.
Articles 24 (4), 50 - 52
Article 2352 (1)
27 May 2004
17 December 2004
8 July 1986
25 February 2010